As a means to resist enforcement of an adjudicator’s decision, or otherwise frustrate the adjudication process, parties regularly challenge an adjudicator’s jurisdiction. The first challenge is often that the referring party has not followed the correct procedure in appointing the adjudicator. However, a party cannot “blow hot and cold” in asserting an adjudicator’s decision is valid for one purpose while also challenging its validity for another; a principle known as approbation and reprobation (“A/R”).

It is not uncommon for contractors to start work on the basis of a letter of intent and to postpone the agreement of contract terms to a later date. In some cases, despite terms going back-and-forth between the parties, a formal contract never materialises but the work continues nonetheless. This can prove to be a risky approach, as to which Arcadis v AMEC serves as a cautionary tale.

In March 2018, we wrote about the case of Grove Developments v S&T, in which The Hon Mr Justice Coulson held that an employer whose payment notice or pay less notice was deficient or non-existent could, by way of an adjudication, dispute that the sum paid was the ‘true’ value of the works for which the contractor had claimed.

Many employers, contractors and subcontractors will be able to relate to, and likely remember, those projects which were subject to long delays for various reasons. In a main contract, for example, the contractor may be responsible for some of the delays experienced while the employer may be liable for other delays, some occurring concurrently. In those circumstances, the vexed question often asked is: “Is the contractor entitled to an extension of time?”

“Smash and grab” has become an increasingly utilised phrase in the construction industry. The road to “smash and grab” adjudications began in 2014 with the case of ISG v Seevic in which, by failing to serve a valid and effective payment and/or pay less notice in response to an interim application for payment, the employer was deemed to have agreed the amount stated in that interim application for payment. At the time, the court’s position was that the true value of the interim application had "been determined" - meaning that the employer was not able to adjudicate on the true value of the works. That was until the 2017 case of ICI v Merit Merrell when it was suggested by the court that ISG v Seevic may not be decided in the same way. In his decision in Grove v S&T published only last week, The Hon Mr Justice Coulson has taken the step to depart from the decisions of his fellow colleagues in an attempt to clarify the alleged confusion as to cash-flow within the construction industry.